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Pittman v. Clarke

United States District Court, E.D. Virginia, Richmond Division

June 13, 2019

STERLING NORRIS PITTMAN, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Roderick C. Young United States Magistrate Judge.

         Sterling Norris Pittman, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 5) challenging his 2014 convictions in the Circuit Court of the County of Henrico, Virginia ("Circuit Court"). Pittman argues that he is entitled to relief on the following grounds:[1]

Claim One: (a) "The trial court erred for not instructing [the] jury on the elements of first-degree murder." (§ 2254 Pet. 5.) (b) "[The] evidence presented at trial was insufficient to establish first-degree [murder]." (Id.)
Claim Two: "The trial court erred by not disregarding the testimony of Shamika Gee, [the] Commonwealth's key witness, who has admitted under oath that she ha[s] lied." (Id. at 7.)
Claim Three: "[Pittman's] Fifth and Fourteenth Amendment rights were violated because the Commonwealth knowingly used perjured testimony by Shamika Gee." (Id. at 8.)

         Respondent moves to dismiss on the grounds that Pittman's claims are procedurally defaulted and barred from review here and, in the alternative, that they lack merit. Pittman filed an "Affidavit," responding to Respondent's Motion to Dismiss ("Response," ECF No. 15). For the reasons set forth below, the Motion to Dismiss (ECF No. 11) will be GRANTED. Claims One (a) and Three will be DISMISSED as procedurally defaulted, and the remaining claims will be DISMISSED for lack of merit.

         I. PROCEDURAL HISTORY

         On June 4, 2014, a jury convicted Pittman of one count of first-degree murder and one count of use of a firearm in the commission of a felony.[2] See Commonwealth v. Pittman, Nos. CR13-3402, CR13-3403, at 1-2 (Va. Cir. Ct. June 12, 2014). The Circuit Court sentenced Pittman to life in prison for the first-degree murder conviction plus three years in prison for the use of a firearm in the commission of a felony conviction. Commonwealth v. Pittman, Nos. CR13-3402, CR13-3403, at 1 (Va. Cir. Ct. Sept. 16, 2014).

         Pittman, proceeding with counsel, appealed, raising the following assignment of error: "The court erred in finding the evidence sufficient to prove that the defendant committed murder in the first degree or any degree of homicide due to the lack of proof of premeditation, the circumstantial nature of the evidence, and the questionable credibility of the witnesses." Petition for Appeal 2, Commonwealth v. Pittman, No. 1761-14-2 (Va. Ct. App. filed Jan. 21, 2015) (emphasis omitted). On May 20, 2015, the Court of Appeals of Virginia denied the petition for appeal. Pittman v. Commonwealth, No. 1761-14-2, at 1 (Va. Ct. App. May 20, 2015). A three-judge panel also denied the petition for appeal. Pittman v. Commonwealth, No. 1761-14-2 (Va.Ct. App. Sept. 22, 2015).

         On May 6, 2016, the Supreme Court of Virginia refused the petition for appeal, but remanded the case to the Circuit Court to address "a discrepancy" regarding whether Pittman was convicted and sentenced for use of a firearm in the commission of a felony, first offense, or for use of a firearm in the commission of a felony, second or subsequent offense. Pittman v. Commonwealth, No. 151595, at 1 (Va. May 6, 2016). The Supreme Court of Virginia described the discrepancy as follows: "The sentencing order recited that appellant was found guilty of 'use of a firearm in the commission of a felony, second or subsequent offense;'" however, "[a]ppellant was not arraigned on a second or subsequent offense for the firearm charge; nor was the jury instructed on a second or subsequent offense." Id. On June 2, 2016, the Circuit Court entered a Corrected Sentencing Order, clarifying that Pittman was convicted and sentenced to three years of incarceration for one count of use of a firearm in the commission of a felony, first offense, and to life in prison for one count of first-degree murder. Commonwealth v. Pittman, Nos. CR13-3402, CR13-3403, at 1 (Va. Cir. Ct. June 2, 2016).

         On May 18, 2017, Pittman filed a petition for a writ of habeas corpus in the Circuit Court, raising the same claims that he raises in his instant § 2254 Petition. See Petition for Writ of Habeas Corpus 1, Pittman v. Commonwealth, No. CL17-1474 (Va. Cir. Ct. filed May 18, 2017); Memorandum of Law in Support of Petition for Writ of Habeas Corpus 6, Pittman, No. CL17-1474. On July 31, 2017, the Circuit Court dismissed Pittman's petition, finding that he defaulted his claims under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), and Henry v. Warden, 576 S.E.2d 495, 496 (2003), and that his challenge to the sufficiency of the evidence was not a ground for state habeas relief. Pittman v. Commonwealth, No. CL17-1474, at 1-2 (Va. Cir. Ct. July 31, 2017). Pittman appealed to the Supreme Court of Virginia. Petition for Appeal, Pittman v. Commonwealth, No. 171429 (Va. filed Oct. 30, 2017). On June 29, 2018, the Supreme Court of Virginia refused the petition for appeal. Pittman v. Commonwealth, No. 171429 (Va. June 29, 2018). Thereafter, Pittman filed the instant § 2254 Petition in this Court. (§ 2254 Pet. 1.)

         II. EXHAUSTION AND PROCEDURAL DEFAULT

         Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted in considerations of federal-state comity," and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (some internal quotation marks omitted) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.10 (1973)). The purpose of exhaustion is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before the petitioner can apply for federal habeas relief. See O 'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

         The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate "opportunity" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id. Fair presentation demands that a petitioner present "both the operative facts and the controlling legal principles" to the state court. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks omitted) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

         "A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when he or she "fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n.l).[3] The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citations omitted). Absent a showing of "cause for the default and actual prejudice as a result of the alleged violation of federal law," or a showing that "failure to consider the claims will result in a fundamental miscarriage of justice," this Court cannot review the merits of a defaulted claim. Coleman, 501 U.S. at 750; see Harris v. Reed, 489 U.S. 255, 262 (1989).

         In Pittman's § 2254 Petition, he raises the same three claims that he presented to the Circuit Court in his state habeas petition. (§ 2254 Pet. 5, 7-8); Memorandum of Law in Support of Petition for Writ of Habeas Corpus 6, Pittman v. Commonwealth, No. CL17-1474 (Va. Cir. Ct. filed May 18, 2017). The Circuit Court found that Pittman's state habeas claims, that are presented in the instant § 2254 Petition as Claim One (a) and Claim Three, were procedurally defaulted pursuant to the rule in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because Pittman could have raised, but failed to raise, these claims at trial and on direct appeal. Pittman v. Commonwealth, No. CL17-1474, at 2 (Va. Cir. Ct. July 31, 2017). Slayton constitutes an adequate and independent state procedural rule when so applied. See Mu`Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Pittman fails to demonstrate any cause and prejudice for his default or a fundamental miscarriage of justice. Thus, Claim One (a) and Claim Three are defaulted and barred from review here, and they will be DISMISSED.

         III. APPLICABLE CONSTRAINTS ...


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